What is a State? To Whom Does a State Owe Duties?

As students of politics or of law, we talk about the state/State/country/nation a lot. I have learned that people have vastly different answers to the basic questions of what a State is, and also what a State ought to be. I wish to describe and categorize some of these ideas.

Debates about what the State is, what it should be, can also be phrased in terms of what duties the State has toward individuals, and toward which individuals the State owes these duties. Put otherwise, it is the common question today pondered by legislators and judges of what rights do people have and from where do those rights come.

During the French Revolution, such issues were intensely debated in the National Assembly. The Third Estate became the National Assembly and declared itself the State. Previously, the French State had been made up of The First Estate (the nobility who fought the wars), The Second Estate (the clergy whose job it was to pray), and the Third Estate (everybody else). Abbe Sieyes described the new order succinctly in his influential pamphlet. He said, 'What is the Third Estate? Everything.' Thus, from the French Revolution forward, France would be ruled as a Republic of citizens. But, who is a citizen? Each group that had been excluded (Jews, women, religious minorities, the poor/landless, homosexuals, various lower professions, etc) one by one petitioned the National Assembly to finally receive their rights. Many of them did not. By force of the State, they were excluded from this new 'inclusive' society. Many of them have fought for inclusion ever since and that question of who is a full citizen, and to whom the State owes duties is still being answered. 

French Declaration on the Rights of Man and of the Citizen

This tension between the idea that rights flow from one's status as human beings, and the idea that rights flow from one's status and a citizen of a State is reflected in the core document of the French Revolution, which is The Declaration of the Rights of Man and of the Citizen. That document starts with a universalist logic, but its actual provisions ignore any rights for women or slaves. Thus, the exclusionary lines were merely redrawn, not eliminated. This issue of the source of rights and where the line of inclusion should be persists today.

Next, I will move to Germany as my next example because it has been through so many interesting phases. Today, it is perceived as quite an ordinary State. This is interesting because it is a federation of Lander (sub-states), and it is a part of a second federal entity (the European Union). Thus, in reality, sovereignty is widely distributed, in contrast to nationalist myths and outdated notions of sovereignty which still view sovereignty as exclusivity. An excellent time for pondering the nature of a State was during the unification of Germany during the 19th Century. This question of what a State is, if it has been solved at all, persisted for decades and led to many radically different answers.

During the 19th Century unification of Germany, some (the liberals) desired the German State to be the flag bearer for liberty, universal rights, and the Enlightenment project, the natural result of which was seen as equality under the law and the protection by the State of individual liberty and autonomy. However, the neighboring France, and more distantly the United States, had previously cornered this market pretty well, so that option was off the table. Such a brand could never truly define and unite the nascent German 'people'.

The debate lasted well into the Twentieth Century. Two influential men provided two vastly different answers-- Karl Marx and Adolf Hitler. Marx sought to expand right to workers and landless poor, both domestically and worldwide. Thus, the first political party to push for universal male suffrage was the Communist League under Ferdinand Lassalle. Socialists viewed the liberation of the working class as the natural outgrowth of the enlightenment ideas of empiricism (applying science to all affairs, including social/political affairs, thus leading to social science), democratic participation, and universal rights. Marx viewed the goal of the German State as the liberation of the poor, working people around the world. The duties of the State toward the proletariat was not confined to Germany. Thus, under this conception, the German State had duties not just to its own people, but to people not on its territory. Further, due to the worldwide injustices inflicted by the exploitation of workers, these duties on the German State came before its duties to its own citizens.

On the other side, Hitler provided simple and profound answers to the looming questions of 'Who is a citizen?', 'What duties does a State owe to people?' 'And to whom do they owe them to? Citizens? Non-citizens/everybody?'. As to the first question, he answered that citizenship should be defined by blood/ethnicity. This addressed the related big question of 'What should be the purpose of the German State?', with the answer that the purpose is to promote the German 'race'. Thus, not only a sound rejection of the universalist-minded [and French!, ugh] Human Rights principles of rights flowing from one's status as a human being, but from this perspective the State not only has no duties toward non-citizens, but was obliged to promote the interests of 'the German race' to the detriment of non-citizens. Everything was viewed as a zero-sum struggle of epic evolutionary proportions. Thus, harm to another group was by definition beneficial to Germans. Therefore, it was also the duty of the German State to harm other groups.

Since the invention of citizenship and the rejection of various Jewish groups' petitioning for full citizenship rights, this group seemed everywhere to be left out. They stood out more and more. Jews, as well as other religious minorities who faced lack of access to many professions, were some of the most enthusiastic supporters of new, broad concept of citizenship flowing from the enlightenment project. Here in The Netherlands, Jews and religious minorities like the Anabaptists disproportionately participated in the Batavian Revolution which led to the establishment of the Dutch Republic and finally expanded civil rights (ability to participate in the regulated professions) to all religious groups. Marx addressed the commonly discussed, so-called 'Jewish question' in his early writings. He stated if Jews are willing to give up their status and identity as Jews, then they should receive full citizenship rights in whatever territory they were in.

However, the argument for excluding Jews won out among the non-Jews, as did the earlier arguments for excluding women, homosexuals, other religious minorities, etc. Thus, as compared to medieval times, Jews began to stand out more and more (George M. Fredrickson, Racism: A Short History (2003)). As other groups previously viewed as separate began to coagulate around these new concepts of 'States' and 'citizenship', the Jews stood out more. They lacked status. They lacked protection. They were more easily the targets of feats of exclusion, discrimination, and de-humanization.

As a result of Hitler and the rest of Europe's repeated rejections of the Jews' request for equality, recognition, and legal protection, some Jews, based on a frank evaluation of political and personal experiences, also abandoned any vision of a pluralistic society where government respects the rights of all citizens/residents fully and equally (as was France's and the United States' enlightenment-driven vision). Instead, they too accepted the idea that the duty of a State is to protect its 'true' people as defined by ethnicity. While of course lacking Hitler's belief in progress through an inherent and violent clash between races, the logical result of Zionism is to value the lives of one's own, as defined by ethnicity, above the lives of others. Thus, any means necessary to protect one's own is morally demanded. Perhaps this is why Israeli defenders have such different interpretations of what is proportionate force in international law.

Types of States

Thus, now in the Twenty First Century, one can distill approximately five models of the State based on this history (these are mere archetypes and describe large segments of each society, not merely the historical example used):

1. Hitler's vision of duties owed exclusive to 'the nation'/'the people', etc. and few or no duties owed by the State to others.

2. Early Zionists' vision of protecting a certain 'nation' of people ethnically defined first and foremost. Only incidental rights granted to others when those rights do not burden the primary right-holders.

3. Germany's post-WWII vision which has strong rights protection on citizens, but falls short of broader claims of general rights and duties outside of citizenship, while also mostly rejecting the idea that rights flow exclusively from ethnicity/citizenship. Thus, the German Basic Law mentions the rights of 'Germans', and German nationality law, like Dutch nationality law, is still heavily based on the jus sanguis principle of citizenship by blood. The idea that some magical properties pass from the parents to the child that make that child more worthy of protection by a State than another child, viewed through a modern lens, is quite silly and discriminatory. This is also the vision followed by many State today, which promote the development of their own economy and people over others, and sees the world, correctly or incorrectly, as a struggle between countries over limited resources.

4. Next is the French Enlightenment vision of universal reason and universal duties and rights based on one's status as a sentient being. This is also the dominant vision of the U.S. Bill of Rights and Founding Era, whereby revolution could by justified by detailed principles of natural law flowing from Reason which had been granted to all making people, in principle, capable of judging their own affairs, whether it be as a member of a jury, as a representative, or in the sphere of life called 'liberty' which was to be constitutionally guarded from others. In contrast to the German Basic Law, the U.S. Constitution did not mention the word 'citizen' until the Fourteenth Amendment. It speaks boldly of the rights of all people, as does French Revolutionary thought.

5. The final step is Marx's vision that the duty of government is to put the interests of vulnerable people or a certain group (the proletariat) above the interests of citizenship.

How do these categories help us? What can we say about our societies based on them?

The first thing to know is that there has been an explosion of globally-minded thinking in my generation (John Zogby, The Way We'll Be (2008)). Just as media in the Eighteenth to Twenty First Centuries expanded the consciousness of a farmer in Kansas so that he could believe that a merchant in Boston was the same as him (see Benedict Anderson, Imagined Communities (1983)), global media coverage of disasters around the world are unleashing the human mind's potential for empathy and quickly expanding our scope of conscientiousness beyond the simple national borders. Yet, the institutions with the most power still operate within a nationalist framework. These institutions have seen their moral credibility in the eyes of the public plummet, but as of yet, in most places there are no alternative credible institutions to supplement or replace them.


The United States

Wordle of U.S. Constitution
This shows how The U.S. Constitution speaks of the rights of people and persons, not of citizens.

It seems to me that the United State alternates between categories two, three and four. It resembles category two due to its frequent claims of exceptionalism. It is one of two countries in the world that asserts the right to use aggressive and disproportionate force to protect its people over the lives of other people. For example, Dick Cheney operated on the belief that if there was a 3% chance of injury to American life, then the U.S. government was obliged to act using all means necessary to protect American life. The U.S. has, at times, made wild claims about the inapplicability of international law rules such as in the Nicaragua case, where the U.S. Supreme Court refused to apply international law to protect the rights of non-citizens, including an adverse ruling of the International Court of Justice. At the same time, it has very strong internal protections of rights as is typical for group 3. Its core documents also make broad claims about rights based on humanity, but it is seems to waver so much in applying these principles that is hard to classify.

The European Union

The EU is also interesting to view from this perspective. It seems to slide between category 3 and 4. This is hardly surprising considering France and Germany have been the two most influential countries in setting up and guiding the course of the EU. However, many have over-emphasized the universalism and global aspects of the EU (Jeremy Rifkin, The European Dream: How Europe's Vision of the Future is Quietly Eclipsing the American Dream 7 (1999)). Indeed, the EU's preambles and human rights charter emphasize universal human rights and non-discrimination, but the reality is much bleaker. The breaking down of internal barriers and borders within Europe and banning of discrimination on the basis of nationality as between European nationals has made the discrimination against non-EU nationals stand out even further. Indeed, the entire process of breaking down internal borders has gone hand-in-hand with the building of a Fortress Europe. Some writers today argue that Europeans are even more hostile than Americans toward immigrants. The mere mention in the Dutch Parliament of the statistical fact that The Netherlands was an immigration country during a recent year (it has historically been an emigration country), brought forth condemnations and demands that the MP revoke his statement which was merely a plain description of the numerical reality for that year.

The current limits on any sort of global consciousness and the persistent reality of territoriality is clear for anyone who, like me, has ever lived in the European Union as a Third Country National. This also applies to people from 'new' EU states as well, whose rights have been slow-tracked and frustrated. There are clear boundaries between who is in and who is out and these borders have immense consequences. The core freedoms of the EU Treaties are not universal.

Even the recent case-law from the European Court of Justice that has aimed at making human rights under EU law apply more systematically and logically still has relied on EU citizenship as the basis for and source of rights protection. In Advocate General Sharpston’s excellent Advisory Opinion to the European Court of Justice in the Zamprono Case [link], she noted that the human rights protections for the Columbian nationals concerned only flowed secondarily and parasitically from the EU Citizen based on the family relationship between the Columbian national and the EU Citizen. Sharpston also noted that the granting of EU Citizenship is nearly completely, if not totally, dependent upon a Member State’s prior grant of nationality to the person. Thus, even though benefits from EU Citizenship may occasionally flow over to help someone without EU Citizenship themselves, this occurs only on occasion and hardly means that there has as of now been substantial expansion of human rights beyond the traditional territorial and provincial limits that persist in practice.